Considered
and decided by Lansing, Presiding Judge; Klaphake, Judge; and Peterson, Judge.

U N P U B L I S H E D O P I N I O N

LANSING, Judge

By writ of certiorari, LouAnn Swift appeals an unemployment
law judge’s (ULJ) determination that she was discharged for employment
misconduct and is therefore disqualified from receiving
unemployment benefits. Because
substantial evidence supports the ULJ’s determination that Swift was discharged
for a series of inappropriate actions that violated the standards of behavior
that a long-term care facility can reasonably expect from a registered nurse who
is providing care for vulnerable adults, we affirm.

F A C T S

Evangelical
Lutheran Good Samaritan Society (Good Samaritan), a long-term care facility, employed
LouAnn Swift as a registered nurse from June 2000 to January 2006. Swift’s primary responsibility was to provide care
for vulnerable adults who were residents at the facility. Good Samaritan discharged Swift on January 27,
2006, because of a series of incidents that started in 2000 and involved
Swift’s treatment of residents.

A
Minnesota Department of Employment and Economic Development adjudicator found
that employment misconduct had not been established in the final incident that
preceded Swift’s discharge. Good
Samaritan appealed and requested a hearing.

Following
a hearing, an unemployment law judge (ULJ) determined that Swift was discharged
for actions that amounted to employment misconduct. Specifically the ULJ found that, because of
continuing complaints about Swift’s conduct toward residents and coworkers,
Swift had completed mandatory retraining in April 2005 on issues of abuse and
neglect and on residents’ rights. Despite the April 2005 counseling and
retraining, Swift was involved in three additional incidents. In July 2005 a patient complained that Swift
had made inappropriate comments to her and had breached her confidentiality. In August 2005 a resident complained that
Swift had yelled at her when she asked for assistance in using the toilet. And while Swift was working the overnight
shift on January 21-22, 2006, she displayed rude conduct and used abusive
language in responding to a resident’s nighttime request for assistance.

At
the evidentiary hearing, Good Samaritan provided testimony from three employees
about incidents over the course of Swift’s employment, but the evidence focused
primarily on the January 2006 incident that culminated in the termination of
Swift’s employment. Swift disputed Good
Samaritan’s account of the January 2006 incident and also some of the incidents
leading up to her discharge. On appeal,
Swift challenges only the ULJ’s factual determination on the January 2006
incident.

Lisa
Beecher, Good Samaritan’s director of nursing, provided a written report from the
nurse who had documented the resident’s complaint on the January 21-22
overnight shift. LS, a vulnerable-adult
resident, had gotten up to go to the bathroom and turned on her “call light” to
indicate that she needed assistance and also to ask for a glass of water. According to the complaint, Swift answered through
the intercom and told LS that she was turning off the call light and, in a very
harsh tone, admonished LS not to turn it on again. Swift told LS that she would be there
shortly. After arriving at LS’s room,
Swift said, “I don’t know why some people think they need all the
attention.” LS replied, “If you feel
that way, then just forget about it.”

Beecher testified that she
twice discussed the incident with LS and that LS’s account of the incident was consistent. When Beecher
discussed the incident with Swift, Swift disputed LS’s account of what had
happened. Because the accounts were
conflicting, Beecher
asked Steve Smith, Good Samaritan’s human-resources director, to attend her
second interview with Swift. Beecher and
Smith both testified at the hearing that Swift did not present a consistent
account of the events and contradicted herself in the course of the
interview. Swift first acknowledged that
she had said something to LS about her need for attention and that she should
not turn on the call light again, but said that LS had not correctly understood
what she meant by the comments. Swift
later denied saying anything about attention or the call light.

At
Good Samaritan’s request, Swift provided a written statement of her version of
the events, and she again denied that she had made the statements to LS. Beecher and Smith reviewed Swift’s written
statement with LS, who adamantly responded that the incident happened as she
had originally reported. When Beecher
and Smith again spoke to Swift, she first admitted telling LS not to turn on
her call light again, but, by the end of the discussion, denied that she had
made either of the statements reported by LS.

Swift testified at the hearing,
consistent with her written statement, that she had not made the statements
that formed the basis for LS’s complaint.
She testified that it was her nursing assistant, Jordan Hackbarth, who
talked with LS. Swift said that
Hackbarth told her that LS’s call light was on and that LS needed to go to the
bathroom. Swift said that she instructed
Hackbarth to tell LS over the intercom that Swift was with another patient,
that she would come as soon as possible, and that LS should not turn the call
light on again. Swift denied making the
comment about some people needing all of the attention and instead told LS that
she was free to put on her call light at any time.

Good
Samaritan presented rebuttal testimony from Hackbarth. He testified that he did not have a
conversation with Swift about LS needing assistance and that he did not tell LS
to turn off her call light.

In
concluding that Swift was discharged from employment for inappropriate treatment
of vulnerable adult residents, the ULJ noted that Good Samaritan and Swift
presented conflicting evidence about the circumstances that led to Swift’s
discharge. The ULJ specifically found
that Good Samaritan’s eyewitness testimony and contemporaneous documentation
presented a “more logical and probable sequence of events.”

Swift
requested reconsideration, disputing the credibility of Good Samaritan’s
witnesses. The ULJ reaffirmed the
decision and stated that the credibility of all witnesses had been evaluated in
the initial decision, which was reaffirmed on reconsideration. Swift appeals by writ of certiorari.

D E C I S I O N

A
discharge for employment misconduct results in disqualification from
unemployment benefits. Minn. Stat. §
268.095, subd. 4(1) (Supp. 2005). “Employment misconduct” is intentional,
negligent, or indifferent conduct that clearly displays either “a serious
violation of the standards of behavior the employer has the right to reasonably
expect” or “a substantial lack of concern for the employment.” Id., subd.
6(a) (2004). Whether an employee committed a particular act is a fact question,
but whether the act constitutes employment misconduct is a question of law. Schmidgall
v. FilmTec Corp., 644 N.W.2d 801, 804 (Minn. 2002).

We
review the ULJ’s decision to determine whether substantial rights were
prejudiced because the findings, inferences, conclusion, or decision are
affected by error of law or unsupported by substantial evidence in view of the
entire record. SeeMinn. Stat. § 268.105, subd. 7(d) (Supp.
2005) (providing bases on which this court may reverse or modify ULJ’s
decision). We defer to the ULJ’s
assessment of credibility and resolution of conflicting testimony. Skarhus
v. Davanni’s, Inc., 721 N.W.2d 340, 344 (Minn. App. 2006); see also Tuff v. Knitcraft Corp., 526
N.W.2d 50, 51 (Minn.
1995) (addressing earlier version of statute in which this court reviewed
decision of commissioner’s representative rather than referee).

Swift’s
argument for reversal is based primarily on issues of credibility. She contends that LS cannot be believed
because she has a documented history of confusion and dementia and that Swift’s
account of the events is “the only one that is consistent and truthful.” For three reasons we conclude that
substantial evidence supports the ULJ’s decision that Swift was discharged for
employment misconduct.

First,
the question of LS’s mental competence was thoroughly explored at the hearing, and
Swift had the opportunity to question Beecher
about LS’s dementia. Good Samaritan has
a policy and procedure for conducting workplace investigations, which includes
evaluating the credibility of witnesses.
In addition to the multiple interviews conducted with LS, in which LS’s
account of events remained substantially unchanged, a written assessment of LS
was conducted shortly after the incident.
The assessment indicates that LS has not had problems with delirium
since her initial diagnosis in 2003.

Based
on the consistency of the information that LS provided in multiple interviews about
the incident and Beecher’s
testimony of LS’s competence and the recent assessment of LS, the ULJ could
reasonably conclude that LS’s account of the events on the evening of January
21, 2006, was reliable.

Second,
the final incident that led to Swift’s termination was not an isolated incident. Swift has a documented history of inappropriate
conduct toward residents. Her personnel
file contained twelve entries from October 2000 through April 2005, describing oral
and written warnings that Swift received for yelling at residents, raising her
voice to them and keeping them awake, becoming short-tempered with them,
speaking to residents in a rude manner and making derogatory statements, making
inappropriate comments to them, and not answering residents’ call lights.

Good
Samaritan has previously taken corrective action with Swift for her past
conduct. In July 2003 Swift was ordered
to attend mandatory retraining on care of vulnerable adults, dementia, work
ethic, and teamwork. In April 2005 Swift
was ordered to attend mandatory retraining on abuse and neglect and residents’
rights. After completing the last mandatory
retraining, Swift committed three instances of inappropriate conduct before
Good Samaritan terminated her employment.

Finally,
Swift’s account of events conflicts with the testimony of three Good Samaritan
witnesses. Beecher and Smith testified
to the inconsistencies in Swift’s oral statements to them and between Swift’s oral
and written statements. The ULJ specifically
based the decision on credibility determinations, and we are required to defer
to the ULJ’s assessments of credibility in deciding disputed facts. Significantly, Hackbarth’s testimony directly
contradicts Swift’s account and supports LS’s version of the events. The ULJ was free to determine that Good
Samaritan’s evidence was more credible than Swift’s explanation of the events.

Based
on the substantial evidence contained in the entire record, the ULJ was
justified in determining that Swift was terminated for employment
misconduct. Swift’s conduct constituted
a serious violation of standards of behavior that a long-term care facility has
the right to reasonably expect from a registered nurse caring for vulnerable
adults. SeeRess v. Abbott
Northwestern Hosp., Inc., 448 N.W.2d 519, 525 (Minn. 1989) (concluding that
nurse, whose conduct included failing to act consistently with training and
past warnings, committed employment misconduct).